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CHILDREN'S ADVOCACY INSTITUTE University of San Diego School of Law Robert C. Fellmeth (CA SBN 49897) Edward Howard (CA SBN 151936) Christina McClurg Riehl (CA SBN 216565) Elisa D'Angelo Weichel (CA SBN 149320) 5998 Alcala Park San Diego, CA 92110 Telephone: 619.260.4806 Facsimile: 619.260.4753 [email protected] MORRISON & FOERSTER LLP Kimberly N. Van Voorhis (CA SBN 197486) Marc David Peters (CA SBN 211725) 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: 650.813.5600 Facsimile: 650.494.0792 [email protected] MORRISON & FOERSTER LLP Steve Keane (CA SBN 247588) 12531 High Bluff Drive, Suite 100 San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

California State Foster Parent Association, California State Care Providers Association, and Legal Advocates for Permanent Parenting, Plaintiffs, v. JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity, Defendants.

Case No.

C 07-5086 JL

FOSTER PARENTS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS Date: December 19, 2007 Time: 9:30 a.m. Judge: Hon. James Larson, Courtroom F, 15th Floor

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TABLE OF CONTENTS Page INTRODUCTION .............................................................................................................. 1 STATEMENT OF ISSUES TO BE DECIDED ................................................................. 2 STATEMENT OF RELEVANT FACTS ........................................................................... 2 LEGAL STANDARD......................................................................................................... 4 ARGUMENT ...................................................................................................................... 4 A. The Court Has Already Denied The State's Motion In The Alliance Case ............ 5 B. The Child Welfare Act Creates A Federal Right Under Which The Foster Parents May Seek Section 1983 Redress ................................................................ 6 Congress Unambiguously Conferred A Right On Foster Parents To Enforce Their Right To Adequate Foster Care Maintenance Payments Under § 1983 .............................................................................. 7 a. The Child Welfare Act Requires The State To Pay Specific And Objective Monetary Payments To Foster Care Providers ......................................................................................... 7 b. Congress Did Not Provide Sufficient Alternative Means Through Which Plaintiffs Can Enforce The State's Compliance With The Child Welfare Act's Requirements............. 9 2. The Rights Plaintiffs Seek To Enforce Under The Child Welfare Act Are Not Vague Or Amorphous .......................................................... 11 3. The Statutory Language Plaintiffs Seek To Enforce Under the Child Welfare Act Is Mandatory......................................................................... 11 4. The State's Arguments Regarding Lack of Standing Are Just As Ineffective In This Motion As They Were In The Alliance Motion ......... 12 C. The Plaintiffs Have Standing To Sue On Behalf Of Their Members ................... 13 CONCLUSION ................................................................................................................. 14 1.

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TABLE OF AUTHORITIES Page 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003)................................................................................................... 6 ASW v. Oregon, 424 F.3d 970 (9th Cir. 2005)........................................................................................... 1, 6, 8, 9 Alaska Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987)..................................................................................................... 14 Blessing v. Freestone, 520 U.S. 329 (1997)................................................................................................ 1, 6, 7, 11, 14 California Alliance of Child and Family Services v. Allenby, 459 F. Supp. 2d 919 (N.D. Cal. 2006) ............................................................................... passim Carson P. ex rel Foreman v. Heineman, 240 F.R.D. 456 (D. Neb. 2006)....................................................................................... 9, 11, 13 Gonzaga University v. Doe, 536 U.S. 273 (2002).................................................................................................. 1, 6, 7, 8, 10 Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333 (1977).................................................................................................................. 13 Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003)........................................................................................ passim Missouri Child Care Ass'n v. Martin, 241 F. Supp. 2d 1032 (W.D. Mo. 2003) ......................................................................... 9, 10, 12 NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061 (N.D. Cal. 2005) ...................................................................................... 4 Nguyen v. FundAmerica, Inc., 1990 U.S. Dist. LEXIS 15031 (N.D. Cal. 1990)......................................................................... 5 North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578 (9th Cir. 1993)....................................................................................................... 4 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)..................................................................................................... 8 Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)................................................................................................... 13 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986)..................................................................................................... 4 Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002)....................................................................................................... 4
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Warth v. Seldin, 422 U.S. 490 (1975)............................................................................................................ 13, 14 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990)........................................................................................................ 7, 10, 13 Wright v. City of Roanoke Redev. & Housing Auth., 479 U.S. 418 (1987)........................................................................................................ 7, 10, 13 STATUTES

6 42 U.S.C. § 1396a(a)(30) .............................................................................................................. 13 7 42 U.S.C. § 1983 .................................................................................................................... passim 8 42 U.S.C. §§ 671(a)(12)........................................................................................................ 6, 7, 12 9 42 U.S.C. §§ 671(a)-(b), 675(4)................................................................................................ 3, 11 10 42 U.S.C. §§ 672(a)(3).............................................................................................................. 9, 12 11 42 U.S.C. § 672(b) ...................................................................................................................... 8, 9 12 42 U.S.C. §675(4) .................................................................................................................. passim 13 42 USCS §§ 670 et. seq. ............................................................................................................... 11 14 42 U.S.C. § 1983 ............................................................................................................................. 4 15 45 C.F.R. § 1355.20 ...................................................................................................................... 11 16 45 C.F.R. § 1356.21(a) (2002) ........................................................................................................ 7 17 42 U.S.C. § 2000d)........................................................................................................................ 12 18 20 U.S.C. § 1681(a)), .................................................................................................................... 12 19 42 U.S.C. §§ 670-679b.................................................................................................................... 5 20 MISCELLANEOUS 21 Federal Rule of Civil Procedure 12(b)(6) ................................................................................... 1, 4 22 23 24 25 26 27 28
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I.

INTRODUCTION The State of California must reimburse foster parents for certain enumerated costs

incurred when they raise foster children. In exchange for receiving federal funding under the Child Welfare Act, also known as Title IV-E of the Social Security Act, California promised to reimburse foster parents for "the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation." 42 U.S.C. §675(4)(A). Foster parents, who serve the public by volunteering1 their time to care for some of the most vulnerable members of our society, are the persons to whom reimbursement is owed. Yet the State has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that three non-profit foster parent organizations do not have a right to seek to enforce a federal statute that mandates reimbursements to foster parents. This is not the first time the State has attempted to block a suit of this kind. In California Alliance of Child and Family Services v. Allenby, 459 F. Supp. 2d 919 (N.D. Cal. 2006) ("Alliance"), a suit aimed at increasing reimbursement rates for group homes taking care of foster children, the State filed this exact same motion. The motion was denied once by Judge Patel, and it should be denied again. Although the State elected not to call the Alliance case to the attention of this Court, the motion to dismiss filed in this case is literally a carbon copy of the motion denied in the Alliance case--only the names of the parties have been changed. Indeed, the State's motion in Alliance involved precisely the same issue raised here: namely, does the Child Welfare Act provide a right of enforcement for foster care maintenance payments under the reasoning of Blessing v. Freestone, 520 U.S. 329 (1997) as explained in Gonzaga University v. Doe, 536 U.S. 273 (2002) and ASW v. Oregon, 424 F.3d 970 (9th Cir. 2005)? This Court in Alliance resolved that question in the affirmative: "the court concludes that CWA confers an individual right on plaintiff's members for enforcement of the foster care maintenance payments pursuant to section 675(4)(A)." Alliance, 459 F. Supp. 2d at 925. California foster parents are not paid for their time, effort, or labor. No one profits from being a foster parent. Foster parents are only reimbursed for some of the cost of raising a foster child.
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As a separate matter, the State's repetition of its Alliance arguments is also strong support for relating the two cases. The State's motion repeatedly refers to Title IV-E funding and the law and rules pertaining thereto. The Title IV-E funding is the core of the controversy in both this action and the Alliance action, and the adjudication of the same legal issues that could have an impact on the same pool of federal dollars should be before one tribunal, in the interest of judicial economy and consistency. II. STATEMENT OF ISSUES TO BE DECIDED 1. Whether there is a private right of action for violations of the Child Welfare Act under 42 U.S.C. § 1983. 2. Whether Plaintiffs may seek section 1983 relief for violations of the Child Welfare Act. STATEMENT OF RELEVANT FACTS This case was filed by the California State Foster Parent Association ("CSFPA"), the California State Care Providers Association ("CSCPA"), and Legal Advocates for Permanent Parenting ("LAPP") (collectively "Plaintiffs" or "the Foster Parents") on behalf of licensed foster parents who elect to care for abused and neglected children removed from the custody of their parents by operation of state law. Plaintiffs are seeking declaratory and injunctive relief that would require the California Department of Social Services and its Division of Children and Family Services (collectively "Defendants" or "the State") to comply with the Child Welfare Act's mandated factors in setting rates for foster care maintenance payments. Congress enacted the Child Welfare Act ("CWA") in 1980 to address the need for providing an appropriate setting for children who are dependents or wards of the state: "foster children." Compl. ¶ 19. The CWA establishes a cooperative federal-state program that assists states in meeting the costs of providing foster care to foster children. Id. ¶ 20. Pursuant to this cooperative program, the federal government and state and county governments share the cost of providing funds for licensed third parties who care for these children (such as the foster parents the Plaintiffs represent). Id. To become eligible for federal funding, the state must agree to administer its foster care program pursuant to the CWA and provide foster care maintenance
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payments to licensed foster parents such as those represented by the Plaintiffs. Id. ¶¶ 22-25; 42 U.S.C. §§ 671(a)-(b), 675(4). California has agreed to administer its foster care program pursuant to the CWA, and the State has received federal funding intended to cover a portion of the foster care maintenance payments. Compl. ¶ 29. The State established payment levels for foster care providers, and payments are made through the relevant county placement agency. Id. ¶ 30. The current monthly rates paid to foster care families per child are $425 for children ages 0-4, $462 for children ages 5-8, $494 for children ages 9-11, $546 for children ages 12-14, and $597 for children ages 15-20. Id. ¶ 32; Cal. Wel. & Inst. Code § 11461. Welfare and Institutions Code section 11461 requires that "[b]eginning with the 1991-92 fiscal year, the schedule of basic rates . . . shall be adjusted by the percentage changes in the California Necessities Index . . . subject to the availability of funds." Between July 2001 and 2007, California did not adjust the schedule of basic rates, even though the California Necessities Index (CNI) had increased by 24.9 percent in that time. Compl. ¶ 34. The Legislature passed a five percent rate increase that is to take effect January 1, 2008, but that is too little to cover the rising cost of living according to the CNI. Id. ¶¶ 32, 34. Thus, California has failed to cover the rising cost of, and cost of providing, the foster child's food, clothing, shelter, daily supervision, school supplies, incidentals, liability insurance with respect to the foster child, and reasonable travel to the child's home for visitation as required by 42 U.S.C. § 675(4)(A). Id. ¶ 35. On October 12, 2007, Plaintiffs filed an Administrative Motion to consider whether the present case should be related to California Alliance of Child and Family Services v. Allenby, Case No. C 06-4095 MHP, pending before Judge Patel. In the motion, Plaintiffs noted that the present action and the Alliance action are related because (1) both cases assert claims against the same defendants: the Director (or interim Director) of the California Department of Social Services, in his official capacity, and the Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity; and (2) both cases require determination of the same or substantially the same questions of fact and law. Specifically, the actions both seek (i) a judicial declaration that the Defendants failure to provide
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adequate foster care maintenance payments in compliance with the CWA deprives Plaintiffs of their federal rights, privileges and immunities under color of state law in violation of 42 U.S.C. § 1983; (ii) injunctive relief requiring that Defendants be temporarily and permanently enjoined from currently and continually using the Rate Classification Level system (Alliance) or basic foster care rates (this action) to establish foster care maintenance payments; and (iii) permanent injunctive relief requiring that Defendants prepare and implement a payment system that complies with the CWA. IV. LEGAL STANDARD A complaint should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). In reviewing a motion to dismiss, "a court must assume all factual allegations to be true and construe them in the light most favorable to the nonmoving party." NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1063 (N.D. Cal. 2005) (citing North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1993)). In the rare event that a complaint is dismissed, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (citation omitted). For the reasons set forth below, the Foster Parents' complaint meets the 12(b)(6) requirements. V. ARGUMENT The State does not challenge the allegation that its foster care maintenance payments are inadequate under the federal statute (nor could it). The State's only ground for its motion to dismiss is a challenge to whether the Plaintiffs "have a private right of action under 42 U.S.C. § 1983 to enforce the provisions of the Child Welfare Act cited in this case (Title IV-E of the Social Security Act, 42 U.S.C. §§ 670-679b)." Defendants' Motion to Dismiss filed on Nov. 6, 2007 (Docket no. 7) at 2 (hereinafter "Mot."). But this question has already been decided: the intended beneficiaries of foster care maintenance payments--foster children and foster care
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providers alike--do have a private right of action to enforce their entitlement to those payments. Alliance, 459 F. Supp. 2d at 925; Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 303-04 (N.D. Ga. 2003). Accordingly, the State's motion should be denied. A. The Court Has Already Denied The State's Motion In The Alliance Case.

It is unfortunate that the State has not called the Court's attention to the fact that a nearverbatim copy of the present motion was already recently denied in the Alliance case. A copy of the State's motion in the Alliance case is attached hereto as Exhibit A. Indeed, the only noteworthy difference between the State's motion to dismiss in Alliance and the present motion is the substitution of plaintiffs. Whatever the State's reason for re-filing the same motion in this case, it should have mentioned that Judge Patel, in denying the earlier version of the State's motion, has already held that the CWA confers an individual right to enforce the payment of foster care maintenance payments pursuant to 42 U.S.C. § 675(4)(A)--the very same right that Plaintiffs seek to enforce here. Alliance, 459 F. Supp. 2d at 925. It is also curious that the State opposed the Foster Parents' motion to consider whether this case should be related to the Alliance case given that it has moved to dismiss on identical issues of law in the two cases. Mot. at 8 n.10. There are overlapping issues of fact, as well. The same CWA funding stream that the State discusses on pages 7-8 of its motion are at the core of the controversy in both this action and in the Alliance action, with the same basic standards applying and an identical legal theory of non-liability on the part of the State. In the interest of judicial economy and consistency, the adjudication of the sufficiency and management of the same funds should be before one tribunal for resolution. See Nguyen v. FundAmerica, Inc., 1990 U.S. Dist. LEXIS 15031, at *4 (N.D. Cal. 1990) (requiring a single adjudication of the distribution of contested investment funds in the name of "judicial economy and equity"). B. The Child Welfare Act Creates A Federal Right Under Which The Foster Parents May Seek Section 1983 Redress.

Notwithstanding the fate of the State's motion to dismiss in the Alliance case, which alone supports denial of the same motion in this case, the Foster Parents have a right under the CWA to 27 seek section 1983 redress. 28
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2

It is settled that private relief is available under 42 U.S.C. § 1983 for violations of the CWA in the Ninth Circuit.2 ASW, 424 F.3d at 978 (holding that 42 U.S.C. §§ 671(a)(12) and 673(a)(3) of the CWA create federal rights enforceable through a section 1983 action); see also Blessing, 520 U.S. at 345-46 (explaining that if plaintiff had alleged that the State failed to give her money to which she was entitled under Title IV-D, the statute could give her a federal right to receive it). District courts agree. In Alliance, this Court held that the CWA confers an individual right to enforce the foster care maintenance payments pursuant to 42 U.S.C. § 675(4)(A). Alliance, 459 F. Supp. 2d at 925. In 2003, the Northern District of Georgia held that the Adoption Act created privately enforceable rights to foster care maintenance payments under the CWA. Kenny A., 218 F.R.D. at 302-03. To establish that the Foster Parents have a section 1983 right to force the State to comply with the CWA's requirements for setting foster care maintenance payments rates, the three-part test set out in Blessing, as refined in Gonzaga, must be satisfied. The Blessing test requires a showing that: (1) "Congress unambiguously conferred [a] right to support a cause of action brought under § 1983," (2) "the right is not so vague and amorphous that its enforcement would strain judicial competence," and (3) "the asserted right [is] framed in mandatory rather than precatory terms." Alliance, 459 F. Supp. 2d at 922 (internal citations and quotation marks omitted); see also Gonzaga, 536 U.S. at 282; Blessing, 520 U.S. at 338. All three elements are satisfied here, just as they were in Alliance and Kenny A. Accordingly, the State's motion should be denied.

In ASW, the Ninth Circuit explained that when determining whether a statute confers an individual right of enforcement, a court should "review only the particular statutory provision at issue." ASW, 424 F.3d at 976-977 (9th Cir. 2005) (finding that the Eleventh Circuit's conclusion that a different provision of the CWA did not create an individual right of enforcement in 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) was neither determinative nor persuasive). For this reason, the State's reliance on 31 Foster Children for the proposition that the CWA does not create an individually enforceable right is misplaced. Mot. at 5.
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1.

Congress Unambiguously Conferred A Right On Foster Parents To Enforce Their Right To Adequate Foster Care Maintenance Payments Under § 1983.

The first element of the Blessing test is satisfied: Congress conferred a right of enforcement for foster care maintenance payments under the CWA. Courts find Congressional intent to confer a right of enforcement for guaranteed entitlements when Congress requires the disbursement of "specific" and "objective" monetary payments but did not establish a "sufficient administrative means of enforcing" states' compliance. Gonzaga, 536 U.S. at 280-81 (discussing Wright v. Roanoke Redev. & Housing Auth., 479 U.S. 418 (1987), and Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990)).3 That is exactly the case here. a. The Child Welfare Act Requires The State To Pay Specific And Objective Monetary Payments To Foster Care Providers.

The Child Welfare Act requires that states provide "foster care maintenance payments" on behalf of eligible children to individuals who care for the children--namely foster parents. 42 U.S.C. §§ 671(a)(2), 672(a)(3), 672(b)(1), 675(4); 45 C.F.R. § 1356.21(a) (2002). The term "foster care maintenance payments" is defined as payments that "cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to a child's home for visitation." 42 U.S.C. § 675(4)(A). There can be no question that these are specific and objective monetary payments. The Alliance court held that the CWA "provides objective criteria for foster care maintenance payments. Section 675(4)(A) enumerates the costs to be included in the foster care maintenance payments." Alliance, 459 F. Supp. 2d at 923. Section 675(4)(A) provides "specific costs to be reimbursed," and is "a far cry from language, such as that requiring `substantial compliance,' that would suggest that Congress intended only to provide a `yardstick' for measuring systemwide performance." Id. at 923 (distinguishing Blessing). The Ninth Circuit has held that an analogous In Gonzaga, the Court relied on Wright and Wilder to distinguish cases which satisfy the Blessing factors from those which do not. Gonzaga, 536 U.S. at 280-81. These two cases, where the Court found an individual right to enforce entitlement to monetary payments, remain controlling law. Alliance, 459 F. Supp. 2d at 923 n.2.
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provision of the Housing and Community Development Act enumerating the monetary benefits to which persons were entitled under the Act showed a clear Congressional intent to confer individual rights. Price v. City of Stockton, 390 F.3d 1105, 1112-1114 (9th Cir. 2004) (concluding that section 104(k) "unambiguously establishes an individual right" to the "precisely" enumerated monetary benefits stated in sections 104(d)(2)(A)(iii) and (iv) which included "reimbursement for actual and reasonable moving expenses, security deposits, credit checks, and other moving-related expenses, including any interim living costs" and "comparable replacement housing"). The Alliance Court observed that "[t]he list of costs presented in section 675(4)(A) is of the same type of specific, objective monetary entitlement as that in Price." Alliance, 459 F. Supp. 2d at 923. Like the sections of the statute at issue in Price, sections 672(a)(3) and 672(b)(1) of the CWA are "phrased with an unmistakable focus on the benefited class." Gonzaga, 536 U.S. at 284 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979)). These sections do not speak solely "in terms of institutional policy and practice," Price, 390 F.3d at 1111, but rather require states to make specified foster care maintenance payments to specified people on behalf of each foster child. This is further evidence of a Congressional intent to create an individual right, under section 1983, to enforce the foster care maintenance payment provisions of the CWA. Moreover, foster parents--such as those represented by Plaintiffs--are intended beneficiaries of the CWA, as are foster children. Congress specified that foster parents are to receive the maintenance payments: "Foster care maintenance payments may be made under this part only on behalf of a child . . . who is--(1) in the foster family home of an individual, whether the payments therefor are made to such individual or to a public or private child-placement or child-care agency . . . ." 42 U.S.C. § 672(b) (emphasis added). The Ninth Circuit recognizes that children are not the only intended beneficiaries of the CWA. See ASW, 424 F.3d at 976 (holding that the CWA conferred individual rights upon adoptive parents to enforce adoption assistance payments required under the Act, even though the stated Congressional purpose of the Act was to benefit children). District courts agree.
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For example, in Alliance, the Court found that the right to payments under the CWA belongs to foster care providers, not just foster children. Alliance, 459 F. Supp. 2d at 924. While children are certainly beneficiaries of the CWA, the CWA also entitles foster care providers to foster care maintenance payments. 42 U.S.C. § 672(b). As the Alliance Court explained: "The foster care payments required by section 672(a) serve a similar function to the adoption assistance payments mandated by CWA section 671 in dispute in ASW: they provide for reimbursement of the costs incurred in providing foster care and adoption services to children." Alliance, 459 F. Supp. 2d at 924. Likewise, the Western District of Missouri held that the right of enforcement to CWA foster care maintenance payments was not limited to foster children: "[W]hile the ultimate beneficiaries of the CWA are the foster children, Congress mandated that foster care providers should recover their costs, thereby [grant]ing a . . . right of enforcement . . . . [In the CWA], the reference to costs focuses on the institutions and not the children." Missouri Child Care Ass'n v. Martin, 241 F. Supp. 2d 1032, 1041 (W.D. Mo. 2003); see also Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 540 (D. Neb. 2006) (holding that foster care providers, and not foster children, were the intended beneficiaries of foster care maintenance payments). This observation applies with equal force to foster parents, because the same sections of the CWA establish the monetary entitlement of both foster care institutions and individuals who provide foster homes. See 42 U.S.C. §§ 672(a)(3), 672(b). Accordingly, Plaintiffs have a section 1983 right to enforce the foster care maintenance provisions of the CWA. b. Congress Did Not Provide Sufficient Alternative Means Through Which Plaintiffs Can Enforce The State's Compliance With The Child Welfare Act's Requirements.

Foster parents must have standing under Section 1983 to enforce their right to foster care maintenance payments, because there is no other way for them to challenge the State's failure to meet its obligations to them. Missouri Child Care, 241 F. Supp. 2d at 1042 (holding that "Congress intended there to be a private right of action under §§ 672 and 675 of the CWA" because "there is not a process under the CWA where an aggrieved individual has access to any federal review mechanism."). Where a statute fails to create a "sufficiently comprehensive" remedial scheme establishing a process that allows individualized review of complaints alleging a
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deprivation of a statutory right, courts find that Congress intended to allow a private remedy under section 1983. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 520-21 (1990) ("We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right."). Federal authority to audit and cut off federal funds for noncompliance "are insufficient to indicate a congressional intention to foreclose § 1983 remedies." Wright v. City of Roanoke Redev. & Housing Auth., 479 U.S. 418, 428 (1987). The Northern District of Georgia held that the CWA does not have a "comprehensive enforcement scheme" with respect to foster care maintenance payments in an analogous analysis of children's rights under the Adoption Act to foster care maintenance payments under the CWA. Kenny A., 218 F.R.D. at 303 ("The Adoption Act merely sets forth an administrative scheme for providing federal funds to child welfare programs, for overseeing these programs, and for withholding funding for noncompliance with federal mandates. There is no mechanism for foster children to seek redress for violations of their rights under the statute. Therefore, the remedies available under the Adoption Act do not preclude a private enforcement action under 42 U.S.C. § 1983."). The lack of a "sufficiently comprehensive" remedial scheme in the CWA enabling an aggrieved individual to have his complaint about noncompliance with the funding provisions of Title IV-E evidences Congress' intent to confer an individual right to enforcement upon foster care providers. Missouri Child Care, 241 F. Supp. 2d at 1042. That there is a specific enforcement provision in the Act for the Act's anti-discrimination provision, sections 674(d) and 671(a)(18), respectively, "does not exclude evaluating other statutory provisions" to determine whether they establish individual section 1983 rights. Alliance, 459 F. Supp. 2d at 924. So long as an individual possesses a federal right, she can enforce that right pursuant to section 1983. Gonzaga, 536 U.S. at 283. Because "Congress unambiguously conferred a right to reimbursement of the specific costs outlined in section 675(4)(A)," but did not provide another remedial mechanism for individual review of a claim that such right has been deprived, a foster parent has the individual ability to enforce that right through section 1983. See Alliance, 459 F. Supp. 2d at 924.
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The right to specific monetary payments conferred by the CWA, coupled with a lack of administrative enforcement mechanism, establishes that Congress unambiguously intended to confer upon foster parents a private right of action for violations of the CWA. 2. The Rights Plaintiffs Seek To Enforce Under The Child Welfare Act Are Not Vague Or Amorphous.

The second element of the Blessing test is also satisfied: the right to foster care maintenance payments is "not so vague and amorphous that its enforcement would strain judicial 7 competence." Blessing, 520 U.S. at 341 (quotation marks omitted). Section 675(4)(A) of the 8 Child Welfare Act identifies the specific costs that the State must reimburse. The Alliance Court 9 held that this section was an "explicit and detailed provision for determining payments to foster 10 care providers." Alliance, 459 F. Supp. 2d at 925. The Court also recognized that issues such as 11 payments based on itemized costs like the ones in the CWA are "routinely entrusted to the 12 judiciary." Id. (quoting Missouri Child Care, 241 F. Supp. 2d at 1041); but see Carson P., 240 13 F.R.D. at 541 (disagreeing with Missouri Child Care and holding that right to foster care 14 maintenance payments is too "vague and amorphous"). The Northern District of Georgia 15 likewise held that the CWA meets the second Blessing factor: 16 17 18 19 20 21 "strain judicial competence." Blessing, 520 U.S. at 341; Alliance, 459 F. Supp. 2d at 922. 22 23 24 25 26 27 28 3. The Statutory Language Plaintiffs Seek To Enforce Under the Child Welfare Act Is Mandatory. The categories of costs to be covered by the payments are defined with sufficient particularity to enable a court to assess the sufficiency of the rates paid by the state. See 42 U.S.C. § 675(4)(A) and 45 C.F.R. § 1355.20. Although the actual costs of certain basic child care necessities such as food, clothing, and shelter may vary, the Court is equipped to determine whether the current foster care maintenance rates fall outside the range of reasonable payments necessary to provide adequate care for children in Fulton and DeKalb Counties. Kenny A., 218 F.R.D. at 303. Enforcing the clear and detailed provisions of the CWA would not

The third Blessing element is also satisfied: foster parents' right to foster care maintenance payments is stated in mandatory terms. Section 671(a)(1) plainly states that "[i]n order for a State to be eligible for payments under this part [42 USCS §§ 670 et. seq.], it shall have a plan approved by the Secretary which--(1) provides for foster care maintenance payments." 42 U.S.C. § 671(a)(1) (emphasis added). Section 672(a)(3) requires that "[e]ach
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State with a plan approved under this part shall make foster care maintenance payments on behalf of each child...if...(II) [such child] had been living in the home." 42 U.S.C. § 672(a)(3) (emphasis added). The mandatory language of these provisions is similar to the unequivocal language of Title IV of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) and Title IX of the Educations Amendments of 1972 (20 U.S.C. § 1681(a)), both of which mandate that "[n]o person [in the United States] shall...be subjected to discrimination." See Alliance, 459 F. Supp. 2d at 925. District courts have recognized the mandatory language of the statute as well. The Alliance Court held: "In clear language, the CWA requires states make foster care maintenance payments." Id. (holding that the third Blessing factor is satisfied). The Northern District of Georgia held that "the statutory provisions indisputably `impose a binding obligation' on the State to provide sufficient foster care maintenance payments for each plaintiff foster child." Kenny A., 218 F.R.D. at 303 (quoting Blessing, 520 U.S. at 341). 4. The State's Arguments Regarding Lack of Standing Are Just As Ineffective In This Motion As They Were In The Alliance Motion.

The State offers the same arguments regarding lack of standing that it did in its motion to dismiss in the Alliance case. The arguments fare no better in this case and are, if anything, 17 weaker when applied to foster parents. For example, the State's position that only foster children 18 could have standing is without merit. Mot. at 7. Plaintiffs not only have standing to bring the 19 current suit on behalf of its foster parent members, but also are in a better position than the foster 20 children to do so. See Missouri Child Care, 241 F. Supp. 2d at 1041 ("Congress must have 21 recognized that if costs were not covered, reputable foster care service would eventually not be 22 available. Congress would also have been aware that as a general proposition foster care 23 institutions, not foster children, would be in a better position to enforce those rights, thereby 24 ensuring the continued implementation of congressional intent."). 25 The State's proposed analogy to Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) is 26 similarly without merit. Mot. at 7. The section of the Medicaid Act at issue in Sanchez requires 27 states to provide "methods and procedures relating to the utilization of, and the payment for, care 28
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and services available under the plan." 42 U.S.C. § 1396a(a)(30)(A); Sanchez, 416 F.3d at 1059. This provision is "of a strikingly different level of generality" from section 675(4)(A) of the CWA, which requires states to reimburse foster care providers for "specific, enumerated costs." Alliance, 459 F. Supp. 2d at 923-24. As the Alliance Court noted, section 675(4)(A) is more analogous to the spending provisions analyzed in Wright and Wilder, which were held to confer individual section 1983 enforcement rights. Id. at 924. C. The Plaintiffs Have Standing To Sue On Behalf Of Their Members.

It does not appear that the State is challenging the right of the Plaintiffs to sue on behalf of their members, but instead argues that only foster children, not foster parents, could have the right to sue.4 Mot. at 7-8. But if the State were challenging organizational standing, it would fail. That Plaintiffs are organizations representing the interests of foster parents does not affect their standing to bring the claims in the Complaint. Warth v. Seldin, 422 U.S. 490, 511 (1975). An organization has standing to sue for its members if it can meet the three-prong test set forth in Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977), which requires that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Plaintiffs meet all three prongs of this test. First, CSFPA, LAPP and CSPCA each have members who are foster parents. Compl. ¶¶ 2, 6, 8. As a result of the State's illegal actions, Plaintiffs' members have suffered actual harm, including deprivation of their federal right to foster care maintenance payments compliant with section 675(4)(A) of the CWA. Id. ¶¶ 55, 58. Thus, the Plaintiffs' members have standing in their own right. Second, the mission of all three Plaintiff organizations is to represent the interests of foster parents in order to ensure positive outcomes for the children in their care. Id. ¶¶ 1, 3, 5-8, 10. The claims raised in the Complaint are germane to the organizations' purposes. Id. ¶¶ 4, 6, 9. Third, individual participation is not required in order to obtain the requested relief. Where a complaint raises systemic legal
4

Interestingly, the Foreman court reached the exact opposite result. Foreman, 240 F.R.D. at 540.
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violations rather than individual grievances, and seeks declaratory and injunctive relief rather than damages, as it does here, the individual participation of each injured party is not required. See Warth, 422 U.S. at 515; see also Alaska Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 938 (9th Cir. 1987) ("[B]ecause the Fund seeks declaratory and prospective relief rather than money damages, its members need not participate directly in the litigation.") (citation omitted). VI. CONCLUSION There is no question but that foster parents have a private right of action to sue for inadequate foster care maintenance payments. All three Blessing tests are satisfied. This Court and others have decided the issue already. The Foster Parents respectfully request that the Court deny the State's motion to dismiss. If for any reason the Court does not, the Foster Parents request that the Court grant them leave to amend their Complaint.

Dated: November 28, 2007

/s/ Marc David Peters Kimberly N. Van Voorhis Marc David Peters, Ph.D. Steve Keane MORRISON & FOERSTER LLP Robert C. Fellmeth Edward Howard Christina McClurg Riehl Elisa D'Angelo Weichel CHILDREN'S ADVOCACY INSTITUTE UNIVERSITY OF SAN DIEGO SCHOOL OF LAW ATTORNEYS FOR PLAINTIFFS California State Foster Parent Association, California State Care Providers Association, and Legal Advocates for Permanent Parenting

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